U.S. v. Jones

• Decision Date: 07 May 1976
• Docket Number: No. 75-1817,75-1817
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Agnel JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1387

533 F.2d 1387

UNITED STATES of America, Plaintiff-Appellee, v. Agnel JONES, Defendant-Appellant.

No. 75-1817.

United States Court of Appeals Sixth Circuit.

Argued Dec. 19, 1975.

Decided March 30, 1976.

On Rehearing May 7, 1976.

Dan Jack Combs, Pikeville, Ky., for defendant-appellant.

Eugene E. Siler, U. S. Atty., John M. Compton, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.

WEICK, Circuit Judge.

Appellant Agnel Jones was tried in the District Court and convicted by a jury upon three counts of a five-count indictment charging him with possession of a firearm as a convicted felon, in violation of 18 U.S.C.App. § 1202(a). He was sentenced to the maximum punishment of two years' imprisonment and a $10,000 fine on each count; however, the prison sentences and two of the fines were suspended, and a five-year period of probation was imposed. In this appeal he challenges his convictions, his sentences, and the denial of bail pending appeal.

We shall discuss the factual setting for each assignment of error in ruling upon that assignment.

I

PROPRIETY OF MULTIPLE CONVICTIONS FOR SINGLE CONTINUOUS

POSSESSION OF THE SAME FIREARM

In 1953 Agnel Jones was convicted of a felony, namely, for violation of federal income tax laws. He has a reputation of being a bootlegger, and over the years has been convicted thirty-seven times in the state court for possession of alcoholic beverages for resale in local option territory, a state law crime for which he paid a fine of $100 on each conviction.

On October 15, 1970 Jones purchased a .32 caliber Burgo seven-shot revolver from a friend who needed money at the time. In March 1973 Jones was stopped by police officers who were conducting a driver's license check; the officers saw this same revolver lying on the seat beside Jones, inspected the gun and recorded its serial number. In December 1973 police officers executed a search warrant looking for untaxed liquor in Jones' store. During the search they asked Jones where his gun was, and he told them it was on a shelf behind the counter; they inspected the gun and recorded its serial number.

In March 1974 Jones was charged in a one-count indictment with possession of a firearm in violation of § 1202(a). In October 1974 a superseding five-count indictment was returned charging him with possession of a firearm on five separate occasions. Counts 1, 3 and 5 charged him with possession of the Burgo revolver on the three occasions described above. He was convicted on those counts and was acquitted on counts 2 and 4.

Jones contends that the multiple convictions violate the double jeopardy clause of the Fifth Amendment, and that he committed only one offense because of his continuous and uninterrupted possession of the same weapon. We agree that only one offense was committed. ¹

The fact that Jones now faces only one fine and only one probationary term does not render the multiple convictions harmless error. Violation of the conditions of his probation would render him liable for cumulative punishments for the several convictions. The policy of avoiding multiplicitous court proceedings dictates disposing of this issue on appeal from the convictions, rather than entertaining this question in an appeal from a motion to vacate sentence which would follow a violation of conditions of probation.

We therefore exercise our discretion under Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2060-61, 23 L.Ed.2d 707, 714 (1969), believing that adverse collateral consequences could flow from the application of the concurrent sentence rule here, as recognized in United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970).

The question whether a continuing offense exists is a question of statutory construction, since Congress has the power to punish different aspects of the same crime. In United States v. Universal C.I.T. Credit Corp.,344 U.S. 218, 224, 73 S.Ct. 227, 230-31, 97 L.Ed. 260, 265 (1952), the Court directed its inquiry to discovering whether Congress intended to punish a particular act or a course of conduct. In examining the statute prohibiting minimum wage law violations, the Court determined that Congress intended to punish a course of conduct consisting of paying employees less than the minimum wage, rather than to punish each act of paying an employee less than the minimum wage.

While we found no federal authority either for the proposition that possession of a contraband item is a continuing offense, or for the proposition that possession of a contraband item at different times and places can constitute separate offenses, we find the reasoning in In re Snow, 120 U.S. 274, 281, 7 S.Ct. 556, 559, 30 L.Ed. 658, 661 (1887), to be persuasive in determining whether a continuing offense existed in the present case.

In Snow the defendant had followed Mormon custom in sharing marital felicity with seven wives. A federal statute prohibited cohabitation of a man with more than one woman in federal territories, including Utah, where he lived. He was charged in a three-count indictment with illegal cohabitation; each count covered a different period of time. The first count charged continuous cohabitation during 1883; the second count charged the same during 1884; and the third count charged the same for the first eleven months of 1885. The Court held that illegal cohabitation is an inherently continuing offense, and that the government could not arbitrarily divide the offense into separate time periods and multiply the penalty.

It is true that in the case at bar the Government is claiming that Jones possessed the pistol on three separate occasions, not that continuous possession existed which has been broken down into arbitrary time period. With equal propriety the Government might have charged Jones with possession on more than 1100 separate days and obtained convictions to imprison Jones for the rest of his life. The fact that the Government merely has proof that he possessed the same weapon on three separate occasions, rather than continuously for a three-year period, should not dictate the result that Jones could receive three times the punishment he would face if continuous possession for a three-year period were proved. There is no proof that there was any interruption in the possession by Jones of the weapon.

The English case of Crepps v. Durden, Cowper 640 (K.B.1777), discussed in Snow, illustrates the principle that acts constituting a course of conduct are not punishable separately if the Legislature intends to punish the course of conduct. There a baker made and sold loaves of bread on the Sabbath in violation of a statute prohibiting the practice of one's trade on the Lord's day. He suffered four convictions, but Lord Mansfield's opinion set aside three of them, holding that regardless of how many loaves he baked or how many hours he worked, only one offense could occur on any given Sunday.

Possession is a course of conduct, not an act; by prohibiting possession Congress intended to punish as one offense all of the acts of dominion which demonstrate a continuing possessory interest in a firearm. If Congress had wished to punish each act of dominion it could have done so easily by forbidding the acts of dominion instead of the course of conduct. In fact, Congress did declare the possessory acts of receiving and transporting firearms to be illegal, but Jones was not charged with performing such acts.

In the recent case of United States v. Hairrell, 521 F.2d 1264 (6th Cir. 1975), the defendant had been charged with possession of counterfeit bills but the jury acquitted him. He was later charged with possessing the same counterfeit bills after his acquittal. He was convicted and claimed double jeopardy on appeal. This Court held that "continued possession after acquittal constituted a new and different offense from that with which he was previously charged." Id. at 1266.

The return of an indictment charging a course of conduct prevents the relitigation of any course of conduct charged in the indictment which is tried or dismissed with prejudice and which occurred prior to the return of the indictment. However, it does not cut off the ability of the Government to charge a course of conduct subsequent to the indictment which also establishes possession of the same contraband. Thus when this Court then stated, "Defendant was convicted of possessing counterfeit currency at a different time and place in the present case from the time and place involved in the earlier charge," the factor which made the different time and place significant was the intervening indictment and adjudication. ² Hairrell is thus consistent with Snow, which stated, "There was but a single offence (sic) committed prior to the time the indictments were found." 120 U.S. at 282, 7 S.Ct. at 559, 30 L.Ed. at 662.

The Government claims that this Court should apply the "same facts" test of double jeopardy, and that since the different counts require proof of possession at different times and places the offenses are separate. The correct statement of the same facts test is found in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which held that an offense can be punished separately under two statutes if one statute requires proof of a fact which the other does not. This rule was applied to a case, like the case at bar, where a defendant was convicted under two counts of violating the same statute, in United States v. Noble, 155 F.2d 315, 318 (3d Cir. 1946). There the court said:

To determine whether the offenses are the same the test is whether each count requires proof of a fact which the others do not.

We find that test inappropriate for an offense involving a course of conduct.

In Rayborn v. United States, 234 F.2d 368 (6th Cir. 1956), this Court held that simultaneous...